Group suing N.B. over abortion funding urges P.E.I. to repeal 'discriminatory' law

A group suing the New Brunswick government in an effort to get it to fund abortions in private clinics is pointing to a similar restriction in Prince Edward Island, calling P.E.I.'s law "discriminatory" and one that has "no place on the books."

The Canadian Civil Liberties Association filed its constitutional challenge earlier this month in Court of Queen's Bench in Fredericton.

The lawsuit asks the court to strike down part of New Brunswick's Regulation 84-20, which includes non-hospital abortions on a list of services not funded by medicare.

In P.E.I., similar regulations under the Health Services Payment Act restrict payments for abortion services to those performed in hospital, excluding services provided through private clinics.

Noa Mendelsohn Aviv, the CCLA's director of equality programs, said there's no medical reason for P.E.I. to fund only hospital abortions.

"It certainly seems to be discriminatory in the same way and limiting in the same way" as the New Brunswick regulation, said Mendelsohn Aviv. 

"It singles out abortion as some kind of unusual form of health care," she said. "Orthopedics are not restricted in that way and urology is not restricted in that way … it's only abortion."

The legal challenge in New Brunswick comes as the owner of the province's only private abortion clinic, Clinic 554 in Fredericton, warns the clinic could close because the New Brunswick government won't pay for abortions there.

Over the years, P.E.I. women have also used the clinic for abortions — at their own expense. As well, transgender Islanders have accessed the clinic for health services not available in P.E.I.

The clinic began turning transgender patients away in early 2020, over concerns it might not be around long enough to see patients through to the end of their transition process.

Decades of no legal abortions on Island

P.E.I. had no legal, on-Island surgical abortions for almost 35 years.

In the 1990s, Dr. Henry Morgentaler took the province to court to challenge the same regulation over funding for clinic abortions. Morgentaler's initial victory was overturned in the P.E.I. Court of Appeal.

In 2016, another legal challenge forced the P.E.I. government to announce it would open a new women's reproductive health centre where surgical abortions are now provided. 

At the time, the premier of the day, former law professor Wade MacLauchlan, said he didn't think the province could win in the face of a legal challenge brought forward by the group Abortion Access Now P.E.I.

Transfer payments withheld in N.B.

In 2020, the federal government cited a provision of the Canada Health Act in withholding $140,126 in health transfer payments from New Brunswick over its refusal to pay for clinic abortions, the amount corresponding with how much New Brunswickers paid out-of-pocket for the procedure in 2017.

But the feds quickly reinstated the funding as New Brunswick's health-care system buckled under the stress of the COVID-19 pandemic.

Jillian Kilfoil, executive director with Women's Network P.E.I., said the same threat of federal transfer payments being withheld will hang over Prince Edward Island as long as the province continues to restrict funding for abortion.

It seems like a really unnecessary restriction that contravenes our own federal legislation.— Jillian Kilfoil

"It seems quite archaic," she said of P.E.I.'s law. 

"It seems like a really unnecessary restriction that contravenes our own federal legislation and is something that would be really worthwhile modernizing — not just from a legal standpoint, but in terms of access and delivery of service as well."

Groups call for 'community effort' 

Kilfoil and Mendelsohn Aviv both suggested eliminating the restriction could open up opportunities for doctors to open their own clinics, making abortions more accessible. Currently the only site on P.E.I. to offer the procedure is at the Prince County Hospital in Summerside.

But Kilfoil also understands expanding access to abortion is something most Island governments have been reluctant to do.

"Unless governments are forced to make a change when it comes to improving access, they're not going to do it on their own, and so it does take a lot of community effort."

Mendelsohn said her group has no plans to sue the P.E.I. government, but said government should change its law all the same.

"With or without litigation, it's clear to us that these are unconstitutional regulations and should be repealed," she said.

CBC reached out to the P.E.I. Department of Health and Wellness, Health PEI, the office of Premier Dennis King, and the P.E.I. Right to Life Association, but did not receive a response.

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